DOCTRINE OF “PITH AND

SUBSTANCE”

By- Sapna Rajmani

BALLB (H)
2ND YEAR
Intern at Smrithi Foundation
Abstract-
This article deals with the doctrine of pith and substance in India and also in context with others
countries. This article also deals with the need and evolution of the doctrine of pith and
substance . This article analyse the doctrine of pith and substance in different countries having
same federal structure. As, they have the same federal structure but they way they applies the

doctrine is far different from each other. This article covers all the landmark case laws which has
been used by the doctrine. The article end up with the conclusion on the doctrine of substance
where all the major points has been discussed by the author.

Introduction-
Pith and substance is a legal doctrine used to determine under which head of power a given piece
of legislation falls. Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the
most important or essential part of something’. Doctrine of Pith and Substance says that where
the question arises of determining whether a particular law relates to a particular subject
(mentioned in one List or another), the court looks to the substance of the matter. Thus, if the
substance falls within Union List, then the incidental encroachment by the law on the State List
does not make it invalid.

The doctrine of pith and substance comes into play whenever there is conflict between various
subjects matter of various list. It is very obvious that certain subject matter enlisted in one of the
three lists tend to converge with the tend to converge with the subject matter enumerated in the
other lists.1The doctrine is primarily used when a law is challenged on the basis that one level of
government has encroached upon the exclusive jurisdiction of another level of government .This
is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional
Jurisprudence.

1
https://indianlegalsolution.com/doctrine-of-pith-and-substance/
 Need for Doctrine of Pith and Substance-

 The doctrine has been applied to provide a degree of flexibility in the otherwise rigid
scheme of distribution of powers.

 “It is not possible to make clean a cut between the powers of various legislatures; they are
bound to overlap from time to time. (2 Prafulla Kumar v. Bank of Commerce, AIR 1947
PC 28 )

 The reason for adoption of this doctrine is that if every legislation were to be declared
invalid on the grounds that it encroaches power, the powers of the legislature would be
severely limited.

 The doctrine saves the incidental encroachment, if only the law is in pith and substance
within the legislative field of the particular legislature which has made it.

 This doctrine is widely used when deciding whether a state is within its rights to create a
statute

Evolution of Doctrine of Pith and Substance-

The doctrine Pith and Substance is borrowed from Canadian Constitution . From there, the
doctrine came into play. A vital question aroused during the process of scrutinizing the
extent of encroachment, regarding the basis on which legislative competence should be
validated. The Privy council came to the rescue in 1880 in the case of Crushing v Dupey 2 In
this case the Privy Council evolved the doctrine, that for deciding whether an impugned
legislation was intra vires, regard must be have to its pith and substance. According to this
doctrine, the legislation as a whole is examined to ascertain its “true nature and character” in
order to determine in what list it falls. If according to its “true nature and character” the
legislation substantially falls within the powers conferred on the legislature which has
enacted it, then it is not deemed to be Invalid “merely because it incidentally trenches or

2
[1880] UKPC 22
 encroaches on matters which have been assigned to another legislature. This case is
considered as precedent case for the doctrine of Pith and substance.

Subsequently in the case of Union of Colliery Company of British Columbia v Bryden 3,

Lord Watson, speaking for the Privy Council, Captured the concept of ‘true nature and
character’ of legislation and addressed it as a metaphor “whole pith and substance” of an
enactment.

Doctrine of Pith and Substance in the Indian Context-

India has two legislative bodies that is Center and the State legislature which deprives its
power mainly from the Article 246 of the Indian Constitution. India under the Seventh
Schedule of the Indian Constitution has three lists namely Union, State and the concurrent
lists where the power to legislate has been demarcated exclusively among three lists and
encroachment of one list over the subject matter of other lists has been prohibited. Under
Union list only centre is allowed to make law related to its subject matters, under State list
State legislature can only make law related to its subject matter and under Concurrent list
both State as well Centre can make law. In India residual power vest with the centre.

Whenever there is conflict between three lists the priority list has to be taken into
consideration List I – the Union list is given utmost priority to this, List II – this is given
priority at second place over the List III that is the State list.

Earlier, while the powers demarcated as per Section 100 of the Indian Government Act,1935
was so rigid and stringent that its give no scope to the doctrine of pith and substance.
Subsequent to the framing of the Indian Constitution , 1949 the Article 246 arouse the scope
for the applicability of the doctrine of pith and substance.

3
[1899] AC 580
 Land mark cases of Doctrine of Pith and Substance in India-

 The State of Bombay And Another v. F.N. Balsara4, This is the first important
judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance.
The court upheld the Doctrine of Pith and Substance and said that it is important to
ascertain the true nature and character of a legislation for the purpose of determining the
List under which it falls.

 Union of India v. Shah Goverdhan L. Kabra Teachers' College 5-The Court held that
in order to examine the true character of the enactment, the entire Act, its object and
scope is required to be gone into. The question of invasion into the territory of another
legislation is to be determined not by degree but by substance. The doctrine of pith and
substance has to be applied not only in cases of conflict between the powers of two
legislatures but also in any case where the question arises whether a legislation is covered
by a particular legislative field over which the power is purported to be exercised.

 Mst. Atiqa Begam and Anr. v. Abdul Maghni Khan and Ors6 The court held that in
order to decide whether the impugned Act falls under which entry, one has to ascertain
the true nature and character of the enactment i.e. its ‘pith and substance’.

The court further said that “it is the result of this investigation, not the form alone which
the statute may have assumed under the hand of the draughtsman, that will determine
within which of the Legislative Lists the legislation falls and for this purpose the
legislation must be scrutinized in its entirety”.

 Premchand Jain v. R.K Chhabra, 7- As long as the legislation is within the permissible
field in pith and substance, objection would not be entertained merely on the ground that
while enacting legislation, provision has been made for a matter which though germane
for the purpose for which competent legislation is made, it covers an aspect beyond it.

4
1951 AIR 318
5
Appeal (civil) 7404 of 2000
6
AIR 1940 All 272
7
AIR 1984 SC 981
 In a series of decisions this court has opined that any enactment substantially falls within
the powers expressly conferred by the Constitution upon the Legislature enacting it, it
cannot be held to be invalid merely because it incidentally encroaches on matters
assigned to another legislature.

 Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors8.-This

doctrine is applied when the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in various lists. If there is
a challenge to the legislative competence, the courts will try to ascertain the pith and
substance of such enactment on a scrutiny of the Act in question. In this process, it is
necessary for the courts to go into and examine the true character of the enactment, its
object, its scope and effect to find out whether the enactment in question is genuinely
referable to a field of the legislation allotted to the respective legislature under the
constitutional scheme.

 State of West Bengal v. Committee for Protection of Democratic Rights, West

Bengal9-Principle of federal supremacy cannot be resorted to unless there is an
irreconcilable direct conflict between the entries in the Union and the State lists.

 In re, Special Reference No. 1 of 200110, the SC said, “An endeavour must be made to
solve it, … by having recourse to the context and scheme of the Act, and a reconciliation
attempted between the two apparently conflicting jurisdictions by reading the two entries
together and by interpreting, and, where necessary modifying the language of the one by
that of the other. … The doctrine of pith and substance is sometimes invoked to find out
the nature and content of the legislation”.

8
CIVIL APPEAL NO. 1975 OF 2008

9
(2010) 3 SCC 571

10
(2004) 4 SCC 489
Doctrine of Pith and Substance in context with different countries–

Canada-

Constitution of Canada , enacted as the British North America Act,1867 had two lists : a list in
section 91 of powers exclusively assigned to dominion and a list in Section 92 of powers
exclusively assigned to provinces where both lists are exclusive of each other and cannot
encroach upon the subject matter of the other lists. Dominion cannot legislate in a field assigned
to provinces and vice versa. Yet inevitably, the brief description of the legislative fields overlap
and inevitably, a statue will be passed which look like as if it belongs in afield exclusively
assigned to the provinces. If the legislature has been passed by a provinces but it really belongs
to the provinces.11

The field where Statue really belongs , is a loose term; but the idea taken literally , was exactly
what the privy council came up with as the solution. The statue must be analysed to identify the
“true nature and character in the class of the subjects to which it really belongs” 12.This phrase is
still used in Canada today to underlying the essence of doctrine of pith and substance. But in year
1990 in the case of Whitbread v Valley13 the validity of this phrase was challenged.

Australia –

It was also used in Australia until 1964, when the High Court case of Fairfax v Commissioner of
Taxation overruled its use by alternative method.

Unlike India and Canada, the Australian constitution had only one list. Thus, there existed no
chance of clash or encroachment of the powers. Yet in year 1903 when the Australian
Constitution became operative started to apply started the doctrine to the new constitution of
Australia. The question in Australia was whether law made falls under the subject mentioned in
section 51 of the constitution of the country. Thus, any law had to be postulated in either of the

11
http://14.139.60.114:8080/jspui/bitstream/123456789/12822/1/013_Working%20the%20Metaphor_The%20Co
ntrasting%20use%20of%20Pith%20and%20Substances%20in%20Indian%20and%20Australian%20Law%20.pdf
12
Rusell v The Queen [1882] 7 AC 829
13
[1990] 3 SCR 1273
two ways; first being the one mentioned in the constitution and the other not being mentioned in
the same. The choice between the two gave rise to the application of the doctrine of pith and
substance.14 There had been a lot of cases through which Australia decided to resolve its
problem. The most important among them were King v Berger 15 and Amalgamated Society of
Engineers v Adelaide Steamship co.ltd16

In the present scenario since the enactment is not regulatory in nature therefore, since the
enactment is hit by section 92 of the Constitution therefore the Doctrine does not help to solve
the problem at all.17

Conclusion-

Pith and substance is a legal doctrine used to determine under which head of power a given piece
of legislation falls. Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the
most important or essential part of something’.

The doctrine Pith and Substance is borrowed from Canadian Constitution India has two
legislative bodies that is Center and the State legislature which deprives its power mainly from
the Article 246 of the Indian Constitution. India under the Seventh Schedule of the Indian
Constitution has three lists namely Union, State and the concurrent lists where the power to
legislate has been demarcated exclusively among three lists and encroachment of one list over
the subject matter of other lists has been prohibited. Whenever there is conflict between three

lists the priority list has to be taken into consideration List I – the Union list is given utmost
priority to this, List II – this is given priority at second place over the List III that is the State list.

In the case of incidental encroachment , the enactment must not rendered void because in the
system like that of India, such encroachment are bound to happens and if all such enactments are

14
http://14.139.60.114:8080/jspui/bitstream/123456789/12822/1/013_Working%20the%20Metaphor_The%20Co
ntrasting%20use%20of%20Pith%20and%20Substances%20in%20Indian%20and%20Australian%20Law%20.pdf
15
(1980) 6 CLR 41
16
[1920] 28 CLR 129
17
Bank of New South Wales v Commonwealth, (1915) 20 CLR 54
rendered void then there will be a large number of invalid enactment. The doctrine has very close
relation with’ form and substance’ and ‘colourable legislature’. As both this doctrines also avoid
encroachment of one list over the other lists.